Promising session for criminal justice reform hijacked by prosecutors

With Nevada Democrats in control of the state Senate, Assembly, and executive branch, the 2019 legislative session held much promise for progressive interests and run-of-the-mill Nevadans — the kind with no ownership or lobbying interests in casinos, mining companies or payday loan outlets.  

The monkey wrench — the resignation of Senate Majority Leader Kelvin Atkinson over criminal campaign finance violations — landed early in the session with a thud that reverberated throughout Carson City.  But the ripple effects would be far-reaching.

Atkinson’s departure left the Senate in the hands of first-term Sen. Nicole Cannizzaro, a prosecutor with the Clark County District Attorney’s office. Her counterpart in the Assembly, Speaker Jason Frierson, is also a Clark County deputy district attorney.

“I had an understanding with Kelvin,” says Assemblyman Ozzie Fumo, a defense attorney who watched many of his bills die without a hearing.  “It’s after Kelvin stepped down that everything grinded to a halt.”

“You had a Democratic, allegedly liberal session that did very little and killed major things,” says defense attorney Tom Pitaro, Fumo’s law partner.   

From issues of national importance such as the death penalty to Nevada’s budget-busting penchant for imprisoning parole and probation violators, the criminal reform agenda fell to the wayside under the leadership of two prosecutors.

“Our tax dollars are going to fund their agenda, which is against the wishes of most people,” Fumo said. “It’s an oligarchy.”

“They take up bills that help after you’ve served time,” Fumo said.  “But the people at the beginning of the system, we’re not helping them at all.  We’re patting ourselves on the back and it’s disappointing from my angle.”

Lost in the self-congratulatory revelry is an assessment of at least 16 criminal justice reforms that failed, in some cases without even getting a hearing.

In a citizen Legislature, where members bring their personal experience to the process of making law, did Cannizzaro’s and Frierson’s prosecutorial bent wield disproportionate influence?

Both Cannizzaro and Frierson failed to respond to repeated attempts to reach them.  

Some lawmakers and defense attorneys contend the two leaders did the bidding of their boss, not the voters who put them in office.  

“I submitted my Bill Draft Requests six to eight months before the session. They knew about them well ahead of time,” says Fumo. “I had discussions with Chairman (Steve) Yeager about them.”

Yeager, a former public defender, chaired the Assembly Judiciary Committee, which failed to take up many of the reform measures.

Yeager did not respond to the Current’s request for comment.  

“You have an ostensible district attorney, that is to the right of Atilla the Hun,” Pitaro said in reference to District Attorney Steve Wolfson. “Many people thought this session would be a bold step forward with legislation for a more modern, progressive criminal justice system. It was an absolute failure.”

“King Canute told the tide not to come in. In this case, the tide didn’t come in,” Pitaro said, comparing the district attorney’s office to the 11th century ruler who thought he could command the tides.  

“It’s a travesty of justice,” says Fumo. “Nothing is going to happen until the Defense Bar files a motion and gets things changed through court orders.  The Nevada Supreme Court is going to have to be our champion.”

Fumo decried the Legislature’s default position of forming a committee to study pressing matters, such as the death penalty and bail reform.

“The Harvard Law Review talked about exactly what you need to do,” Fumo said. “UNLV did a white paper that talks about exactly what needs to be done.  They (legislative leaders) ignored it.”

A separate report released this week from the Council of State Governments Justice Center says 39 percent of admissions to Nevada prisons are for supervision violations and 22 percent of Nevada’s inmates are in custody for a supervision violation.

“On any given day in Nevada, 2,852 people are incarcerated as a result of a supervision violation at an annual cost to the state of $52 million,” the report says. “Technical supervision violations account for $47 million of this total amount, and new offense supervision violations make up $5 million. These figures do not account for the substantial local costs of keeping people in jail for supervision violations.”

Fumo’s bills would have allowed many of those defendants to remain out of prison and on house arrest.  But even the savings to taxpayers didn’t hold sway, Fumo says.

“It didn’t seem to resonate with the people who mattered,” he says. “We were worried about money for mental health, for teachers, for schools. We pay $170 a day to keep someone in custody.”

Fumo says the defendant who skips out on court appearances is exceedingly rare. Most who miss a date do so because of an emergency.

“Eventually, they show up,” he says.  “We have 5,000 in the Clark County Detention Center waiting to go, most on first time violations.  Releasing just 1,482 people, the State of Nevada would have saved $92 million a year. My house arrest bill didn’t even get a vote out of committee.”  

Defense attorney JoNell Thomas asked Judge Doug Herndon earlier this year to rule the death penalty unconstitutional in cases before him because the Legislature was in the control of prosecutors.  

A motion filed on behalf of one defendant argued “the death penalty in Nevada is ‘invalid because the legislative process … has been compromised due to prosecutorial interference and dominance in Nevada’s Legislature.’”

Thomas’s motion claims that Wolfson, as Cannizzaro’s and Frierson’s employer, exerted improper authority over legislative leaders and “indirect authority over his subordinates” to kill debate on the death penalty.

Wolfson did not respond to requests for comment for this story.

Herndon denied the motion and an effort by Thomas to procure communications among legislative leaders and their employer, the District Attorney’s office.  The Current has made a public records request for those communications.  

Thomas also contends prosecutors should be barred from serving in Nevada’s citizen Legislature because of the inherent conflicts.  

“The Legislature has taken on the office policy of major institutions — the police, the district attorney,” says Pitaro.

The reforms that died

The following criminal justice reform measures, all sponsored by Democrats or Democratically controlled legislative committees, failed in the 2019 Legislature, despite the Democratic stronghold.

• Assembly Bill 69 would have allowed parole violators to avoid a hearing by pleading to the offense and receiving house arrest.  The measure passed the Assembly 40-2. It died in the Senate Judiciary committee, which was chaired by Cannizzaro.
• AB 109 would have granted offenders on house arrest credit for time served in the same manner as those held in custody.  The measure unanimously passed the Assembly and died in Senate Judiciary.
• AB 125 would have authorized judges to use an evidence-based risk assessment tool. It would have prevented judges from relying solely on a standardized bail schedule to set bail for defendants who have personally appeared before the magistrate. The bill passed Assembly 27-12 on party lines and died in the Senate Judiciary.
• AB 148 would have treated stipulated agreements between defendants and the district attorney as a conditional plea agreement that is subject to acceptance by the court. The measure died on the Assembly floor. 
• AB 149 would have abolished the death penalty and reduced current death sentences to life without parole. The measure did not receive a hearing in either house.
• AB 203 would have required that people who are arrested and are not on bail and have no record of failing to appear while on bail must be released on unsecured bond for arrests not involving an act of violence.  The measure did not receive a hearing in either house.
• AB 292 would have made misinterpreting or failing to disclose evidence a felony. The measure never got a hearing.  
• AB 315 would have automatically sealed records for eligible offenders convicted of possession of controlled substances (not for the purpose of sale) who have completed probation, re-entry programs and any other requirements. The measure was gutted in Assembly Judiciary, and died in Senate Judiciary.
• AB 325 would have required the state to go through certain motions to increase bail for felony defendants.  Additionally, the motion to modify bail must be based on new or different reasons than those previously stated.  The bill was heard in Assembly Judiciary but received no vote.
• AB 411 would have decriminalized many traffic violations. The measure passed the Assembly 36-5 and died in the Senate Committee on Growth and Infrastructure.   
• AB 420 would have repealed the existing statute allowing for the seizure, forfeiture and disposition of proceeds attributable to the commission of certain crimes.  The state currently profits from its share of cash and other property seized without court order. The measure passed the Assembly 34 to 6 and was killed in Senate Judiciary.   
• AB 423 would have allowed offenders convicted of attempting to commit a category C, D or E felony to petition the court after serving the sentence to modify the conviction from a felony to a gross misdemeanor.  The measure passed the Assembly 41 to 0 and died in the Senate Judiciary Committee.
• AB 424 would have allowed offenders who committed crimes as juveniles but are convicted as adults to be eligible for parole after 20 years, regardless of the number of deaths involved in the crime.  The measure passed the Assembly 33 -7 and was killed in Senate Judiciary.
• SB 110 would have provided grants to re-entry programs designed to help newly-released prisoners acclimate to their newfound freedom. Programs such as HOPE for Prisoners are found to have higher rates of employment for former offenders and lower rates of recidivism, at significant savings to the state. The measure was referred to the Senate Finance Committee and never had a hearing.
• SB 246 would have prohibited the imposition of a death sentence.  The measure was not heard.
• SB 353 would have required police and probation officers to record interrogations of children under the age of 15.  The bill was heard but not voted on in the Senate Judiciary Committee.

A measure sponsored by Cannizzaro, Senate Bill 242, increased protections for police by granting back pay to suspended officers under certain circumstances; requiring questioning of officers by superiors to stop under certain circumstances; prohibiting an officer’s compelled statement from being used in certain civil cases; limiting the time a law enforcement agency has to initiate an investigation of an officer’s alleged misconduct; prohibiting a law enforcement agency from reassigning an officer while he or she is under investigation; and requiring in certain circumstances that civil and administrative proceedings against police officers be dropped.

That bill was passed by lawmakers and signed into law by Gov. Steve Sisolak.